Judicial Determination Of Crime Of Falsely Making Out Special VAT Invoices

Due to the changes of the economic environment,the behavior of falsely issuing special invoices for value-added tax in the current Criminal Law Hermeneutics is misplaced and deviated from the behavior of falsely issuing special invoices for value-added tax at the beginning of the establishment of the crime.Although the Supreme People’s court has made great efforts to correct the excessive application of the crime of falsely issuing special invoices for value-added tax in judicial practice and has the effect of unifying the standards of judicial adjudication,it has failed to establish a strict and comprehensive standard for the identification of falsely issuing criminal acts.The crime of falsely issuing special invoices for value-added tax is difficult to identify in practice,and is plagued by the lack of appropriate system interpretation of the penalty setting.In order to reasonably delimit the criminal circle of the crime of falsely issuing special invoices for value-added tax,the academic circles have successively put forward numerous academic views,such as the theory of behavior crime,the theory of purpose crime,the theory of result crime,the theory of abstract dangerous crime and so on.The traditional general theory of behavior crime transplants the recognition standard of "three streams are consistent" in the tax law,resulting in the confusion of the recognition of virtual behavior in the sense of criminal law and administrative law.As a result,the criminal’s attitude towards the protection of legal interests is too negative,ignoring the value of the crime of falsely issuing special invoices for value-added tax to prevent the danger of infringement of legal interests in advance.The theory of intentional crime is difficult to make a self consistent explanation of the actor’s subjective purpose in the two ways of introducing others and opening up for others.The theory of abstract dangerous crime fails to put forward a clear enough standard for the identification of false opening behavior.The theory contention still can not answer the problem of the inversion of crime and punishment between the crime of falsely issuing special VAT invoices and the crime of tax evasion,which destroys the interpretation of the criminal law system.Legal interests may be the key tool to distinguish the crime of falsely issuing special invoices for value-added tax.If we are willing to recognize the national tax interests as the legal interests of this crime,the allocation of severe punishment for the crime of falsely issuing special invoices for value-added tax,or we can get support from the implementation of the crime of falsely issuing invoices,including the impairment of national tax,so as to shorten the gap between improper crime and punishment and the crime of tax evasion.With the help of the directive effect of legal interests,we can distinguish the subjective form of the crime of falsely issuing special VAT invoices,which includes not only direct intention,but also indirect intention.Taking the national tax interests as the center of legal interests,the distance between harmful acts and infringement of legal interests is transformed into a radius for ranking.After the implementation of the certification of special VAT invoices,the risk of infringement of legal interests caused by falsely issued special VAT invoices is significantly increased,creating an abstract risk of derogating from the national tax.The act of invoice certification can objectively reflect the subjective intention of the perpetrator who knows the abstract risk of infringement of legal interests,The subjective and objective aspects of the actor are unified at the authentication time point.Considering the historical origin of the crime of falsely issuing special invoices for value-added tax and the current ideological trend of positive and preventive criminal law,the occurrence of authentication behavior or the appropriate identification time point of abstract danger to legal interests.The optimization of penalty application,or the heavy penalty of falsely issuing special VAT invoices that cannot be fully explained can be adjusted.Adding an exemption mode for initial crime and promoting the standardization of sentencing and the mitigation of punishment can make the crime of falsely issuing special invoices for value-added tax get rid of the criticism of "excessive punishment",and change from being out of place to getting a reasonable return in the criminal law system.